Moody v. Robertson

B. F. SAFFOLD, J. The plaintiff is not entitled to recover if the defendant’s judgment against John Robertson may be used as a set-off. It may be so used if the. suit could have been instituted in the name of the said Robertson. The common law permits, and section 2523 of the Revised Code requires, a suit founded upon an implied contract for the payment of money to be prosecuted in the name of the party to be benefited. — 1 Chit. Plead. 4, 100. A suit for the recovery of money paid by mistake, is based upon such an implied undertaking. As John Robertson was the party really interested, the defendant’s judgment against him was available as a set-off, though he was not a party to the record. — Bowen v. Snell, 9 Ala. 481. The charge was erroneous because the right of action accrued only on account of the payment by mistake. The judgment is reversed and the cause remanded.